To save much of the confusion which has resulted from attempts to interpret statutes over the years, the parliaments throughout Australia have enacted their own set of interpretation rules. These are embodied in special Acts by both the federal and state parliaments (The interpretation Acts) the purpose of which if to assist the interpretation and to apply standard rules of interpretation in some circumstances.
The Federal Act – Acts Interpretation Act 1901
The Acts Interpretation Act (1901) )Cth) gives courts some assistance in interpreting federal acts. For example s 15(a)(a) of the Act directs court to prefer an interpretation that gives effect to the purpose and policy of the act. This has formalised the purpose approach mentioned above,
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To some extent, these two provisions (and their state and territory counterparts) simply re_ected changes that were already occurring in judicial doctrine and practice in Australia, England and elsewhere.
However, the provisions enjoyed the legitimacy of parliamentary endorsement for the changes that were happening anyway.81
Such provisions in statute law had a tendency to drive judges back to the statutory text (read in context and with its apparent purposes in mind). e practical problem that sometimes presents to judges is this. e context of contested legislation may appear to point in a particular direction. e purpose of the legislation may arguably point in the same direction. But if the text of the legislation points with sufficient clarity in a contrary direction, the judge, in Australia, will normally give primacy to that language. He or she will override the inclination to which context, purpose (and on one view the text) might otherwise point the judicial decision-maker.
A good illustration of this conclusion may be found in the decision of the
High Court of Australia in Minister for Immigration and Multicultural and
Indigenous Affairs v B (‘B’s Case’).82 at was a case in which proceedings
Australian Legal Case: The Mabo Case The Mabo case commenced in the late 70's about an Aborigine Eddie Mabo who fought for his land on Murray Island, part of the Torres Strait. The issue that started the court case was when Mr Mabo appealed for a permit from the Queensland Government to visit the island. His proposal was declineed so he was unable to return home to visit his homeland.
The roots of Australian laws are similar to traditional Aboriginal laws, dating back to before the Norman Conquest in 1066, where each separate village had their own laws developed to their own customs. This changed however, after a centralized legal system was established after 1066. A common law was formed, that applied to all of England. This was later combined with equity law and mercantile law, which is the basis of Australian law today, known as ‘statute law’.
Legislation and the Common law are not separate and independent sources of law. They exist in a symbiotic relationship. Symbiotic relationship refers to the two different sources of legal norms that provide the sum of rules establish system as a whole. (Brodie v Singleton Shire Council (2001) 206 CLR 512, 532 [31])
The application of these laws in the real world has become a hot debate as to whether the Australian legal system is based on justice and fairness. This is strongly related to the judge-made laws. Judge-made laws or common laws rely on the doctrine of precedent. This means that the decisions made by judges in the courts are based on previous cases that have similarities with other cases. The decisions in the doctrine of precedent are normally based on the higher authority court decision.
The changes needed for the Australian society to be adequately addressed is not the law itself but the consequences in regarding the law because if they were effective than there would be less violence happening but that is not the case.
The merits of both the adversarial and inquisitorial system will be explored throughout this paper. The Australian rule of law best describes as all law should be applied equally and fairly. The five vital operations of the rule of law includes fairness, rationality, predictability, consistency, and impartially. The adversarial system adopts these operations by having a jury decide on the verdict and the judge being an impartial decision maker. In contrast, the inquisitorial system relies heavily on the judge. This can result in abusive power and bias of the judge when hearing evidence and delivering verdicts. The operations of the rule of law determine why the rule of law is best served by the adversarial system in Australia.
9. Woodgate, R., Black, A., Biggs, J., Owens, D. (2003). Legal Studies for Queensland, Volume 1, ForthEdition, Legal Eagle Publications: Queensland. 10. Woodgate, R., Black, A., Biggs, J., Owens, D. (2003).
... but there must also be some indication in the legislation, its purpose and context showing this intention. The courts’ duty is to ensure that the legislative target is hit and not merely to record that it has been missed, but it must also be careful not to trespass on the separation of powers. If a gap is disclosed in the legislation, the remedy lies in amending the Act.
To give conventions justiciable entitlement would be taking away from the highly advantageous flexibility that the UK Constitution has attained from remaining uncodified. Further, the large volume of conventions may provide a difficulty in enforcing them within the courts. In contrast, it could be argued that codifying select conventions may bring certainty to many unclear areas, such as defining the Ministerial Code partly did, thus providing an easier structure for conventions to be enforced legally. However, conventions are merely seen as a moral and political obligations, and should not upon breach have legally enforceable consequences. The argument against whether the court should enforce conventions will be supported and discussed in this essay.
The first approach is assessing the Law according to its target audience. This is beneficial as it defines the context in which the text is applying itself to. Hays mentions, “Connecting texts to their contexts is a basic tenet of proper interpretive method. The Law is part of a story, and this story thus provides a critical context for interpreting the Law.” This approach can be problematic as meaning of a particular law could be misinterpreted to fit the context in which it is placed in. The Law may be given in a specific instance; however, it could have a general meaning, which could be lost using this approach.
Instead, multiculturalism places a wide range of claims of accommodation such as religion, ethnicity, language, race and nationality (Song, 2010). In the case of Australia, the acceptance of multiculturalism based on such far-flung claims has essentially resulted in the advent of politics of recognition among the minority groups seeking accommodation or integration in Australia. This is shown by Song (2010) who states that key among the claims fronted by Australia’s minority groups is self-government or at least some sort of recognition that affords such communities a form of autonomy. One key comparison is the aboriginal communities of Australia and those of Canada, whereby claims for recognition based on the uniqueness of ethnicity have left a bad taste in the mouth of white
There are four sources of Law in the Australian Legal System. They are Statute Law, which is made in Parliament, Common Law and the Law of E...
Punishment occurs to individuals who break the law. It is also used to maintain the level of crime and to protect community members in Australia. To determine that society is content with maintaining the crime rate, this essay will discuss punishment types given to offenders and how society justifies the use punishment. Additionally, providing a brief overview of the community correction and prions rates to show that communities prefer to incarcerate lawbreakers. Highlighting that crime rates are being maintained by looking at the personal crime rate for assault before concluding that Australian society feel safe enough to allow the criminal justice system to sustain the crime rate.
Over the years, different jurisdictions had built their specific system of rules of conduct to govern behaviour. These legal systems, influenced by historical and cultural roots, can be distinguished in two families, the Civil law and the Common law legal systems. The distinctions lies in the process in which each decision is make by the judge and on the legal sources that shapes the law. Indeed, by contrast to the Common law system, which is largely based on Precedents, meaning the decisions that have already been made by judges in similar cases, the Civil law system is based on legislator’s decisions and legal codes with which judges have to justify their judgment . Consequently, instead of referencing to concepts and rules
The English legal system is ostensibly embedded on a foundation of a ‘high degree of certainty with adaptability’ based on a steady ‘mode’ of legal reasoning. This rests on four propositions